Before SCHNACKENBERG, KNOCH and CASTLE, Circuit Judges.
SCHNACKENBERG, Circuit Judge.
Freddie Lee Childress, defendant, has appealed from a judgment of conviction on the verdict of a jury, of armed robbery of a clerk in charge of a postal contract station of the United States, at Indianapolis, Indiana, on or about May 22, 1964 in violation of 18 U.S.C.A. § 2114. He was sentenced to imprisonment for a term of 25 years.
1. His court-appointed counsel contends that the use of incriminating statements obtained in violation of defendant's constitutional rights constituted plain error requiring reversal.
Defendant was arrested at his home in Indianapolis on June 3, 1964. Later that day he was interrogated at city police headquarters by postal inspector Freeman, investigator Leonard of the postal inspection service and sergeant Gibbs of the Indianapolis police department. During these events defendant did not have counsel present and did not request counsel or an opportunity to consult with a lawyer.
In Escobedo, at 490-491, 84 S. Ct. at 1765 the court said:
"We hold, therefore, that where, as here, the investigation is no longer a general inquiry into an unsolved crime but has begun to focus on a particular suspect, the suspect has been taken into police custody, the police carry out a process of interrogations that lends itself to eliciting incriminating statements, the suspect has requested and been denied an opportunity to consult with his lawyer, and the police have not effectively warned him of his absolute constitutional right to remain silent, the accused has been denied 'the Assistance of Counsel' in violation of the Sixth Amendment to the Constitution as 'made obligatory upon the States by the Fourteenth Amendment,' Gideon v. Wainwright, 372 U.S., at 342 [83 S. Ct. at 795, 9 L. Ed. 2d 799], and that no statement elicited by the police during the interrogation may be used against him at a criminal trial." (Italics supplied.)
The record before us does not show that defendant ever requested, or was ever denied, an opportunity to consult with a lawyer. Hence the principle announced in Escobedo has no application in the case at bar. Moreover, the argument made on defendant's behalf that there can be no presumption of a waiver of counsel, Johnson v. Zerbst, 304 U.S. 458, 58 S. Ct. 1019, 82 L. Ed. 1461 (1938), is not applicable to this case, because, unless his right to counsel was established by the denial of a request by defendant for an opportunity to consult with his lawyer or a lawyer, he had no such right which could have been the subject of a waiver.
2. We agree with the statement of defense counsel in his brief that at the trial the testimony of postal inspector Freeman that defendant denied being in town on the night of May 22, 1964 was damaging to the defendant's case, "since all other evidence showed that he was in town". We note, as pointed out by defendant's counsel, that the court instructed the jury that if they found "that the defendant made such statement, if any, voluntarily with knowledge of its falsity, then they may consider the statement as circumstantial evidence which may tend to prove consciousness of guilt." It is in this court that defendant for the first time has raised a constitutional question in regard to the admission of this testimony, claiming that although it "was inadmissible * * * under the Fifth and Sixth Amendments to the Constitution of the United States, no objection on this ground" had been made at the trial.
On the constitutional issue now raised for the first time, we cannot say that defendant now has a right to have us pass upon the admissibility of the aforesaid testimony under rule 52(b) of the Federal Rules of Criminal Procedure. 18 U.S.C.A. rule 52(b)*fn2
3. As we are now alluding to the whereabouts of defendant on the night of May 22, 1964, we will also consider his claim that the court erred in denying his request to modify the following given instruction:
"Flight of an accused, after a crime has been committed, does not create a presumption of guilt. It is, however, a circumstance which may tend to prove consciousness of guilt, and should be considered and weighed in connection with all the other evidence. If you find that the defendant left the State of Indiana shortly after the alleged crime was committed, you may give such fact whatever weight seems to you to be ...